Delaware bar recommends DGCL amendments, including officer exculpation charter provisions
The Council of the Corporation Law Section of the Delaware State Bar Association has provided recommendations to the Delaware General Assembly for a number of changes to the Delaware General Corporation Law, some of them significant, such as an amendment authorizing charter provisions that would eliminate the personal liability of specified officers […]
Schemes of Arrangement: Dodgy Plots or Effective Ways to Purchase UK Companies?
1. What is a scheme of arrangement and when might you use it? While the word ‘scheme’ may give you pause, a scheme of arrangement is a well-trodden path to purchase UK companies via a court-approved process. A scheme of arrangement is the most common structure for acquiring a UK […]
Is the SEC process for SPAC registration statements Kafkaesque?
“Statement Regarding SPAC Matter,” is the latest from SEC Commissioner Hester Peirce. Seems completely anodyne, doesn’t it? But, as they say, looks can be deceiving. Instead, it’s a withering criticism of the SEC’s failure to declare a SPAC registration statement effective in time to allow a de-SPAC merger to go forward, […]
Delaware Advance Notice Decisions Highlight Move Toward Enhanced Scrutiny of Board Actions, Even Where Conflicts Exist
Like US constitutional law, Delaware courts apply a tiered standard of judicial review to actions taken by the board of directors of corporations: Business judgment deference (rational basis). Enhanced scrutiny under Unocal and Revlon (intermediate scrutiny). The compelling justification standard articulated in Blasius (strict scrutiny). In the constitutional arena, the […]
New SEC proposal takes on SPACs
Yesterday, the SEC voted, three to one, to propose new rules and amendments regarding SPACs, shell companies, the use of projections in SEC filings and a rule addressing the status of SPACs under the Investment Company Act of 1940. The proposal arrives in the context of calls from various corners, […]
Corp Fin issues new M&A-related CDIs
Last week, the SEC issued a number of new CDIs related primarily to M&A transactions, including Forms 8-K, communications under Rule 14a-12, and, in the context of de-SPAC transactions, the Rule 14e-5 prohibition of purchases outside of a tender offer. To learn more about these updates, please see the recent […]
ESG and M&A: Vetting a Target’s ESG Strengths and Weaknesses to Assess Value, Go-Forward Risks and Disclosure Requirements
The corporate sector’s approach to environmental, social and governance (ESG) issues – or “ESG” (the shorthand by which they are commonly referred) – has risen in prominence in recent years as investors have become increasingly socially conscious. It’s clear that what was once just an industry buzzword is here to […]
Delaware (Again!) Requires Upward Adjustment to Deal Price in Appraisal Proceeding Despite Objectively Fair Sales Process
A recent Court of Chancery decision adds yet another wrinkle to the appraisal landscape and the potential for appraisal arbitrage. In BCIM Strategic Value Master Fund LP v. HFF, Inc. (Del. Ch. Feb. 2, 2022), the court found that—despite a sufficiently robust sales process that supported ascribing heavy weight to […]
Hart-Scott-Rodino Act Thresholds Jump in 2022
Basic ‘size-of-transaction’ threshold now $101 million The Hart-Scott-Rodino Act thresholds, which govern when mergers and acquisitions must be reported to the US Department of Justice and Federal Trade Commission, will jump 9.8% in February 2022. The basic “size-of-transaction” threshold will increase from $92 million to $101 million. The FTC announced […]
Antitrust Trends to Look Out for in 2022
One year into his administration, President Joe Biden has made clear that aggressive competition policy is on the agenda. With a team of progressives filling leadership roles at the Federal Trade Commission and in the Antitrust Division of the US Department of Justice, companies are able to predict what the […]